Filling the legal vacuum

Sophie Duxson

Indonesia has no overarching legal framework governing the treatment of asylum seekers and refugees in its territory. This legal vacuum stems from the country’s historical reluctance to sign the 1951 Refugee Convention, an attitude that has been characterised by scholars as a wholesale ‘rejection’ of international refugee law that pervades the entire Southeast Asian region.

Encouragingly, there have been some indications that Indonesia is willing to embrace international refugee protection obligations in the future. This could provide a foundation for the development of laws specifically to protect the welfare of asylum seekers and refugees and provide them with legal pathways to settle permanently in the country.

Additionally, there are many international, regional and domestic instruments already in place that could inform and bolster the development of a robust domestic legal framework to protect refugees in Indonesia, should there be sufficient political will to do so.

Signing the Refugee Convention

The Refugee Convention is the key international treaty governing the treatment of refugees. It provides the foundation for the development of national laws protecting asylum seekers and refugees.

Historically, many Asian governments, including Indonesia, have been sceptical about the value of the Convention and its associated 1967 Protocol. They have perceived it as a deeply Eurocentric document developed in response to mass displacement after World War II and therefore not applicable in an Asian context. Furthermore, Indonesia has traditionally viewed itself as a transit country for refugees hoping to make their way to Australia, and therefore without obligations to provide for refugees in the long term.

Indonesia has also expressed concern that ratification of the Convention may serve as a ‘pull factor’ for asylum seekers. Finally, there is reportedly a perception across the political spectrum in Indonesia that the large numbers of displaced people seeking asylum around the world is the responsibility of those western countries that, by virtue of their intervention in foreign conflicts, created the problem. These are all significant hurdles to ratification.

Nevertheless, there have been some recent indications that the Indonesian government is increasingly willing to engage with international refugee law. After extensive lobbying by the United Nations High Commission for Refugees (UNHCR), Indonesia declared an intention to sign the Convention in its last two National Action Plans on Human Rights, in 2004 and 2011. It issued two presidential decrees to that effect. A bill for parliamentary ratification of the Convention and Protocol had apparently been drafted by November 2013, as had a parliamentary decree for partial ratification. To date, however, neither the bill nor the decree has been enacted and the Convention remains unratified.

Laws relevant to refugee protection in Indonesia

As it stands, there is no legal framework in Indonesia that relates specifically to refugees, but there is a disparate collection of laws that govern their treatment, at least to some extent. The Indonesian Constitution itself contains a right of every person to ‘obtain political asylum from other countries.’ The meaning of this provision is open to interpretation, but its use of ‘every person’ suggests it applies to foreigners as well as Indonesians. This right is mirrored in Law No 39 of 1999 on Human Rights.

The legal instrument most relevant to asylum seekers in Indonesia is a 2010 Regulation of the Indonesian Director-General of Immigration. It allows ‘irregular migrants’ to register as asylum seekers with the local office of the UNHCR and stay in the country on a temporary basis while their asylum claims are processed and a durable solution is identified for them. The Regulation also ensures that they retain no formal legal status in Indonesia and that the cost of housing and food for registered asylum seekers is borne entirely by UNHCR.

The legal status of regulations like this is largely unclear. No Indonesian court is empowered to review their constitutionality. This is highly problematic because these instruments are also regularly promulgated without being subject to the rigours of the parliamentary process. The fact that the principal legal document governing refugee treatment in Indonesia at the moment did not pass through parliament and cannot be constitutionally reviewed by an Indonesian court, is troubling.

Two other statutes that the parliament has enacted give immigration authorities and the president broad discretionary powers in relation to asylum seekers. Law No. 37 of 1999 on Foreign Relations gives the president wide-ranging discretion to grant asylum to individuals by presidential decree as he or she sees fit, and authority to ‘determine policy with respect to foreign refugees taking into account the views of the Minister [of Foreign Affairs].’ I am not aware of this discretion ever having been exercised to date.

Law No. 6 of 2011 on Legal Practice on Immigration provides immigration authorities with the power to prevent the entry and departure of foreigners on a wide range of grounds. It prescribes that victims of people smuggling be put in detention or be returned to their home countries. The law uses the term ‘illegal immigrant’ and makes no mention of asylum seekers or refugees. But it also grants those with UNHCR documents special status, which ostensibly prevents them from being arrested or deported (although there is no way to enforce this), while also imposing strict rules regarding their conduct.

In practice, Indonesia does not deport asylum seekers while their claims are processed, but those found to be refugees are not legally allowed to settle in Indonesia. There is widespread detention of asylum seekers, although many more live in the community, awaiting resettlement for years. They have no access to government services and are barred from working or studying. For this reason, scholars have suggested that Indonesia ‘merely tolerates’ asylum seekers, treating them with ‘benevolent neglect’.

But it is also worth pointing out that the Indonesian government has been remarkably tolerant of the presence of asylum seekers and refugees in the country, particularly compared to Australia’s increasingly restrictive policies. One example of this was the provision, by the Indonesian and Malaysian governments, of temporary protection to Rohingya asylum seekers stranded at sea.

International human rights law and regional frameworks

Domestic refugee protections in Indonesia are inadequate. However, Indonesia’s changing attitudes towards human rights law, the existence of several under-utilised regional frameworks, and the efforts of robust civil society in the region, provide potential for significant improvements to the domestic protection regime.

Martin Jones, a lecturer in international human rights law at the University of York, has pointed out that the Refugee Convention is not the only source of state obligations towards refugees, and that a domestic ‘asylum law’ could be developed from alternative sources, without needing to sign the Convention.

In the past two decades, Indonesia has ratified a significant number of international human rights treaties into its domestic law which should have direct application to asylum seekers and refugees. These include the Convention against Torture (CAT), the Convention on the Rights of the Child, and the International Covenant on Civil and Political Rights. Ratification of the CAT engaged the non-refoulement principle, a fundamental tenet of international refugee law, which provides that states must not return a person to a risk of persecution or serious harm. Other domestic obligations should flow from these laws, but they seem to be rarely upheld in relation to refugees.

There are also valuable regional instruments that, although they remain unimplemented, have the potential to provide substantial protection to refugees in Indonesia and the region. The Bangkok Principles, developed in 1966 in a concerted demonstration of post-colonial regional cooperation, contain protections broader than those in the Convention itself, but to date have led to no domestic laws. The 2012 ASEAN Human Rights Declaration confirms the right of every person to seek and receive asylum in another state. Finally, the 2013 Jakarta Declaration emphasises the protection of victims of people smuggling, and commits to ‘encouraging’ legal avenues for migration in their territories and improvements to economic and social conditions to prevent ‘irregular movements’.

The work of civil society

There are also many civil society groups in Indonesia and the region, linked by the Asia Pacific Refugee Rights Network (APRRN), which advocate for the rights of refugees in Indonesia and beyond. APRRN serves a capacity-building function, supporting its members to advocate directly for individual asylum seekers and refugees, and for policy reform. For example, APRRN’s Indonesian members helped the Indonesian government to draft Standard Operating Procedures in relation to the treatment of asylum seekers and refugees (which are still awaiting final approval).

These civil society groups provide a source of research, capacity-building and advocacy for the implementation of the existing regional frameworks into workable domestic legislation, or the enforcement of international human rights law already ratified in Indonesia in favour of asylum seekers and refugees. Grassroots efforts like this may be more useful than attempting to ratify the Convention, as it may help to avoid the public perception of the imposition of western ideas irrelevant to the region.

While Indonesia should be applauded for not returning asylum seekers to the countries from which they are fleeing, it only tolerates their presence in the short term and does not address the arrival of asylum seekers in a holistic or norms-based way. Movements towards embracing international human rights obligations to refugees have occurred in fits and starts, and are often delayed by indecision and bureaucracy. But they demonstrate a slow but positive change in attitude towards asylum seeker flows in Indonesia. The Indonesian government must take a systematic approach to enacting national legislation governing the treatment of refugees, or enlivening the operation of laws, norms and frameworks that, usefully, already exist. Engagement with civil society will allow for the development of principled, evidence-based, and locally specific policy.

Sophie Duxson was a research assistant at the Andrew and Renata Kaldor Centre for International Refugee Law at UNSW.